The 10th Circuit remanded to the State Department Dana Zzyym’s request to be granted an intersex passport, continuing a 4½-year battle.
DENVER (CN) — There’s only one place Dana Zzyym is certain to go: back to square one. The 10th Circuit on Tuesday reversed and remanded the intersex American’s passport application back to the State Department for reconsideration.
In a 42-page opinion, the three-judge panel acknowledged that the State Department has the ability to deny a passport for any reason it sees fit, but maintained that the binary sex policy appeared to contradict the agency’s penchant for accuracy.
“It certainly appears that concern for accuracy was key to the State Department’s decision,” U.S. Circuit Judge Robert Bacharach, an Obama appointee, wrote for the court. “In the face of a criminal penalty and regulatory requirement, we cannot simply assume that the State Department would have relied on the binary sex policy even after learning that it would create inaccuracies in passports.”
Born with both male and female characteristics, Zzyym identifies as intersex and uses plural pronouns. When presented with the passport application, Zzyym could not accurately check the box for male or female under sex.
Zzyym sued the State Department in October 2015. After five years in court and two remands to the agency, U.S. District Judge R. Brooke Jackson found the State Department overstepped its authority and issued a narrow order in 2018 for the State Department to print a passport for Zzyym.
The State Department appealed in January this year. The 10th Circuit agreed that agency had authority to decide whether to grant or deny a passport, but found inconsistencies between the record and the binary sex policy. Now the State Department must rereview its policy and reconsider the application again.
“Zzyym argues that requiring consistency between inaccurate identification documents does not render them more accurate or reliable. We agree,” Bacharach wrote. “For intersex individuals like Zzyym, treating every applicant as male or female would necessarily create inaccuracies.”
The birth certificate Zzyym was given in 1958 originally used the name Brian Orin Whitney and left the gender line blank because they were born with “ambiguous external sex characteristics.” Raised male, Zzyym was 5 when they underwent medically unnecessary corrective surgery at their parents’ request.
In 1995, the six-year Navy veteran changed their name to Dana Alix Zzyym.
“I started the process to get an accurate passport more than five years ago,” Zzyym said in a statement. “In those five years, I’ve been invited to present at several international conferences on issues confronting intersex individuals. I’ve been unable to attend because I don’t have an accurate passport. While this ruling is disappointing, I’m not deterred. I knew this would be a long battle, and I’m ready to continue the fight.”
Zzyym is represented by Lambda Legal Counsel Paul D. Castillo.
The Department of State did not respond immediately to a request for comment.
Since Zzyym first applied for a passport, at least nine other states have adopted policies allowing intersex identification on official documents: California, Colorado, Maine, Minnesota, Nevada, New Jersey, Oregon, Vermont and Washington.
U.S. Circuit Judges Stephanie Seymour, appointed by Carter, and Carolyn McHugh, appointed by Obama, rounded out the panel.